R v Herald and Weekly Times Pty Ltd
[2006] VSC 94
•20 March 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6928 of 2005
| THE QUEEN (on the application of the Prothonotary of the Supreme Court of Victoria) | Applicant |
| v | |
| THE HERALD AND WEEKLY TIMES PTY LTD (ACN 004 113 937) AND ANOTHER | Respondents |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 & 2 MARCH 2006 | |
DATE OF JUDGMENT: | 20 MARCH 2006 | |
CASE MAY BE CITED AS: | R v THE HERALD AND WEEKLY TIMES PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 94 | |
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CONTEMPT – Publication of an editorial after the plea in a murder trial but before sentence – Whether editorial had a tendency or was calculated to undermine public confidence in the administration of justice - Whether editorial had a tendency or was likely to influence the trial judge in his decision-making process – Whether a serious risk that the Court would appear not to be free from any extraneous influence – Herald & Weekly Times Ltd v The Attorney-General for the State of Victoria [2001] VSCA 152 discussed – Attorney-General (NZ) v Tonks [1939] NZLR 533 distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Langmead SC with Mr C.M. Caleo | Victorian Government Solicitor |
| For the Respondents | Mr W.T. Houghton QC with Ms G.L. Schoff | Corrs Chambers Westgarth |
HIS HONOUR:
On Tuesday 23 March 2004, John Sharpe murdered his wife, Anna Kemp. It was an horrific crime. It was followed, on Saturday 27 March, by another. On that day Mr Sharpe murdered his daughter Gracie, who was born on 13 August 2002. Both murders were in cold blood. Both were planned. Both were barbaric.
Mr Sharpe initially claimed that his wife had left both him and Gracie. He later fabricated an addendum: that Ms Kemp had subsequently returned, on this occasion to spirit Gracie away with her as part of a plan to abscond with another man, to whom Ms Kemp was (as her husband, in a further concoction, claimed) pregnant. For weeks extending into months, the murderer maintained this fiction, going to considerable lengths to give it substance. In late May 2004, at a time when the disappearance of his wife and daughter was attracting media interest, he allowed himself to be interviewed on television. He pleaded with his wife to make contact with the police, or the media, or the family. In another television interview, he spoke of his fears for his daughter’s future.
Even as he spoke, however, the quantum of damning evidence available to the police was growing. This, of course, inspired further investigations; and these revealed more incriminating material. On 22 June, Mr Sharpe was charged and interviewed. At first, he denied any wrongdoing. The pressure imposed by the attempt to maintain an untrue story must, however, have become too great to withstand. At some point during the interview, the suspect asked, and was allowed, to speak to his family. Having done so, he confessed. A fresh round of the record of interview was conducted, during which he gave substance, later confirmed by forensic and other evidence, to his confession.
On Tuesday 26 April 2005, the prisoner’s plea of guilty to two counts of murder was heard by Bongiorno J. sitting in Melbourne. It was then adjourned, part heard, to Friday 20 May last year. The plea concluded on that day, and his Honour announced that the prisoner would be sentenced on Monday 6 June.
Two days after the conclusion of the plea, and a fortnight before sentence was due to be pronounced, the respondents (respectively, the publisher and the editor of the Sunday Herald Sun) published an editorial, of which the second respondent was the author, in the edition of that newspaper for Sunday 22 May 2005. There first appeared, in the editorial column, the newspaper’s name; and, directly beneath that, a photograph of the prisoner who in turn was holding a photograph of his daughter. There then appeared the headline “A black heart”. The editorial continued:
“Look at John Sharpe, a father explaining his wife has run off with another man, taking his only child, and feel pity. He holds the little girl’s photograph and mourns his loss. Look again, however, and be prepared to experience both anger and revulsion.
Sharpe murdered Gracie, 20 months, with a spear gun.
He had taken her shopping for the weapon, with which he also murdered his pregnant wife. He fired the bolt into the toddler as she slept the innocent sleep of the young.
Sharpe’s lawyer, Jane Dixon, told the Supreme Court on Friday her client was not in the same category as psychopaths Paul Denyer and Ashley Coulston, two infamous murderers serving life sentences.
Spot on, Ms Dixon. He is worse. Unlike the other two, Sharpe, 38, from Mornington, is not mad. As prosecutor Jeremy Rapke asked: ‘Could it be no more than he’s a thoroughly evil person?’
Sharpe killed his wife out of hatred, carefully planning the crime. He buried her body in the back garden before dismembering it for removal to a tip. Inventing a cover story that Anna Sharpe had returned to snatch Gracie, he murdered the child three days later and also disposed of her body.
When his web of lies unravelled, and police asked Sharpe why he killed little Gracie, he replied: ‘It was self-preservation.’
So look again at the photograph, taken when he was acting the broken hearted father, and decide whether he should be spared life in gaol. After all, he pleaded guilty. Or should he be locked away with no chance of parole, as the prosecution argues?
Justice Bernard Bongiorno will make his sentencing decision soon. Given the climate of community concern over what are perceived to be soft penalties for serious crimes, Victorians will be watching with special interest.”
In an affidavit sworn on 30 June 2005 by Stephen Joseph Lee, a solicitor employed in the Victorian Government Solicitor’s Office, it is said that publication of the editorial was drawn to the attention of Bongiorno J “on or around 23 May 2005”. The circumstances in which his Honour became aware of the article are not otherwise known. It is likely, however (although it is unnecessary for me to determine the point) that his Honour read it. On Monday 23 May 2005, his Honour – who was then sitting in Wodonga – said, according to a certified copy of the transcript:
“Yesterday, on page 38, the Sunday Herald Sun published an editorial concerning the case of R v Sharpe, which was heard before me on Friday afternoon last, 20 May, in Melbourne. I adjourned the case part heard to 6 June next. The publication of that editorial would appear to have constituted a prima facie case of sub judice contempt of this Court. The case had not been completed. It is part heard and, particularly, Sharpe has not been sentenced. Having regard to the course I propose to take it is inappropriate that I comment any further on the matter at this stage.
The Court will make the following orders:
1.Pursuant to the provisions of rule 75.07(1) of the Rules of the Supreme Court and in the inherent jurisdiction of this Court, I direct the Prothonotary to make such enquiries as are necessary and to make application to this Court for punishment for contempt of court of the person, persons or corporations responsible for the publication of the editorial on page 38 of the 22 May 2005 edition of the Sunday Herald Sun.
2.I further direct that the Prothonotary report to the Court on the progress of such enquiries and application by 4 p.m. on Friday 3 June 2005.
There will be no other orders and in the circumstances it is inappropriate that I make any further comment.”
The Prothonotary did as his Honour directed. This was followed on 30 June 2005 by the issue of the originating motion by which this proceeding was commenced. The applicant seeks, among other things, a declaration that the respondents be adjudged guilty of contempt of court. Under the heading “Particulars of Contempt” the following appears:
“(E)The publication of the editorial constituted a contempt of the Supreme Court in that it had a tendency or was calculated (in that it was objectively likely) to interfere with the due administration of justice in that:
(i)The editorial had a tendency or was calculated (in that it was objectively likely) to undermine confidence in the administration of justice by giving rise to a serious risk that the Supreme Court of Victoria (constituted by the Honourable Justice Bongiorno) would appear not to have been free from any extraneous influence; and
(ii)The editorial had a tendency or was calculated (in that it was objectively likely) to influence the Honourable Justice Bongiorno in his decision-making process.”
A request for further and better particulars of the originating motion was issued on 29 July 2005. The respondents then asked the applicant to identify those parts of the editorial which were alleged to have a tendency or to be calculated to interfere with the due administration of justice; and how it was said that the editorial had a tendency, or was calculated, so to interfere.
Further and better particulars, dated 19 August 2005, were provided. The applicant then identified a succession of the editorial’s words and phrases as having the tendency alleged. The following response was given to the request that the applicant specify how it is put that this tendency arose:
“The applicant says that the entirety of the editorial … had a tendency or [was] calculated (in that it was objectively likely) to interfere with the due administration of justice in that:
(a)the editorial had a tendency or was calculated … to undermine public confidence in the administration of justice by giving rise to a serious risk that the Supreme Court … would appear not to have been free from any extraneous influence;
(b)the editorial had a tendency or was calculated … to influence the [judge] in his decision-making process … ;
(c)the article is properly construed as a recommendation or direction to the [judge] as to the manner of the exercise of his discretion in determining the sentence to be imposed on Sharpe;
(d)the public was likely to construe the editorial as a recommendation or direction to the [judge] as to the manner of the exercise of his discretion in determining the sentence to be imposed on Sharpe and, on that basis, conclude that his Honour might be influenced by the editorial in his decision-making process;
(e)the editorial had a tendency or was calculated … to interfere with the sentencing discretion of the [judge] by conveying the impression to [him] that:
(i)he ought to exercise his sentencing discretion in determining the sentence of Sharpe in the manner recommended or directed by the editorial; and
(ii)that the second respondent and the readers of the Sunday Herald Sun would be watching vigilantly to see whether his Honour had exercised his sentencing discretion in the manner in which the editorial had recommended or directed;
(f)the editorial had a tendency or was calculated … to undermine public confidence in the administration of justice by conveying to the public the impression:
(i)that the [judge] ought to exercise his sentencing discretion in determining the sentence of Sharpe in the manner recommended or directed by the editorial; and
(ii)that the editorial had made the [judge] aware that the second respondent and the readers of the Sunday Herald Sun would be watching vigilantly [as already described];
and, on that basis, the public was likely to conclude that his Honour might be influenced by the editorial in his decision-making process.”
The issues thus raised go to the core of democratic governance. They must be teased out with care, because important matters of principle are involved. It is not that these are difficult to articulate: they are part of the daily diet of every secondary school student of political theory. The problem lies rather in the fact that, while the principles are so important that democratic governance depends upon their practical application, their practical application sometimes brings them into conflict one with the other. This is one of those times.
No democracy can survive as such without freedom of speech, and therefore without a media independent of all three arms of government: the executive, the legislature, and the courts. It is likewise essential to the democratic polity that its laws be enforced by courts that are independent of the other two arms of government, and are neither beholden nor seen to be beholden to outside interests - including those embodied by the (often very powerful) media. Once a dispute has been submitted to a court of law, the democratic system of governance demands that there be no usurpation by any other person or interest, however powerful, of the function of that court to decide that dispute according to law.[1]
[1] See Attorney-General v Times Newspapers Ltd [1974] AC 273 at 309 per Lord Diplock.
The Herald and Weekly Times Pty Limited, along with other important bodies within the media, exercises great power, but not always with responsibility. The courts also exercise great power, but not always correctly, and not always with the wisdom that such exercise requires. Each has a role in exposing and correcting the mistakes of the other. Each ought to do so while giving practical acknowledgment to the vital part the other plays in the maintenance of a decent, humane and civil society. Each, albeit that both are encumbered with the defects of their humanity, is worthy of respect. Each ought to accord that respect to the other. They each in their different ways serve as a reminder of both the light and dark sides of human nature – of humankind’s capacity for reason and justice that makes free government possible; and of its capacity for passion and injustice that makes such government necessary.[2]
[2] See Clinton Rossiter’s Introduction to The Federalist Papers (Mentor Books, 1961) pp.xiv-xv.
It is in these circumstances appropriate that the power of the courts to punish the media for contempt of court is one which is to be exercised with great caution[3] – much greater caution, their roles being very different, than that required of the media when charging the courts with incompetence. A charge of contempt must be proved beyond reasonable doubt;[4] and the test is whether there is either an actual interference with the administration of justice or “a real risk, as opposed to a remote possibility, that justice will be interfered with”.[5]
[3]Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 133 [“the BLF Case”].
[4]Witham v Holloway (1995) 183 CLR 525.
[5] The BLF Case, at 56.
In this case, the allegation brought by the Crown is not that there was an actual interference with the administration of justice. It is that the publication of the editorial constituted contempt of this Court because it had a tendency or was calculated (in that it was objectively likely) so to interfere. That is the charge which the Crown must prove if it is to obtain a conviction. The respondent submitted that the Crown must go further, and prove each of the two particulars: that is, not only that the editorial had a tendency or was calculated to undermine public confidence in the administration of justice by giving rise to a serious risk that this Court would appear not to have been free from any extraneous influence, but also that the editorial had a tendency or was calculated to influence Bongiorno J in his decision-making process.
Having considered these submissions during the course of the hearing, I rejected them. I did so because it seemed to me that, the charge being fully articulated in the passage ending with the words “with the due administration of justice”,[6] what followed were properly described as particulars. They were not an element in the substantive offence, although their presence was necessary if the respondents were to be accorded that protection against surprise to which they are entitled. The Crown, therefore, did not have to prove both; and it only had to prove one in the sense that proof that the offence had been committed in some way other than that particularised would probably and impermissibly take the respondents by surprise.
[6] Paragraph (E) under the heading “Particulars of Contempt” in the originating motion.
The first particular alleged by the applicant is, in effect, that the editorial would give rise to a serious risk that the Court would appear not to have been free from any extraneous influence. Editorials in the Sunday Herald Sun, directed to the pending result of a particular case, are extraneous to the considerations to which the courts may have regard in considering that particular case. The respondents know this; or, if they do not, their knowledge of the theory of democratic governance is sadly deficient. They nevertheless chose to publish the editorial between the plea and the sentence. I have no reasonable doubt that by doing so they intended to influence their readers into thinking that, unless the Court imposed upon Mr Sharpe imprisonment for life without remissions, its sentence would be less than adequate; and if this opinion were brought to the attention of the judge, so much the better for the respondents. To that extent, they put the commercial interests of the first respondent – which are generally well served by the generation of controversy, fear and (so long as it is not directed at itself, or those it favours) “outrage” - above the public interest.
The public did of course have a legitimate interest in the imposition of appropriate punishment upon Mr Sharpe, as upon all offenders. So did the Sunday Herald Sun. The problem is that the two interests are not the same, although - in common with the media in general - the Sunday Herald Sun likes to portray the two as in alignment. The public interest is in a measured and fully informed discussion about sentences and sentencing policies both in the broad and in the particular case, including a dispassionate analysis of the correctness or otherwise of an individual sentence, and of the costs and benefits of punishment for the individual offender, for his or her family and dependants, and for the general community. Above all, the public interest is in the imposition of sentences which are based upon such an analysis by a judge beholden to nothing else but those matters to which he or she must by law have regard. To the extent that these interests do not coincide with the commercial interests of the first respondent, it will be tempted to prefer the latter. Doubtless it will often succumb to that temptation, as it did in this case. In any event, the respondents are entitled to express their views, informed and balanced or otherwise, provided they are not in the process guilty of an actual interference with the administration of justice, or behaviour which gives rise to a real risk, as opposed to a remote possibility, of such interference.
In this case, the editorial in question was informed and balanced – except for its timing, and the clear indication in its final two paragraphs that the judge should sentence Mr Sharpe to life imprisonment without the possibility of parole. The account it gave of the prisoner’s crimes was restrained and, within the limits imposed by its restraint, accurate. For this, the respondents are to be commended. The issue is whether, by the two final paragraphs, the respondents have, beyond reasonable doubt, committed a contempt.
It does not follow that, because the editorial was intended to influence the Court, it necessarily amounts to a contempt. The crucial question is not what the respondents intended, but what they achieved. I am not satisfied beyond reasonable doubt that the editorial had a tendency or was objectively likely to influence Bongiorno J in his decision-making process. Nor am I satisfied beyond reasonable doubt that the editorial had a tendency or was objectively likely to undermine public confidence in the administration of justice by giving rise to a serious risk that the Court would appear not to be free from any extraneous influence.
Each case must be judged against its particular circumstances. One relevant consideration is whether the editorial was so strident that, if its message was ignored by the judge when sentencing the accused, there would arise a real possibility of uninformed public clamour of the kind which would bring the courts, and therefore the administration of justice, into disrepute.
This was not such an editorial. Not only was it a measured recitation of the facts, but the facts were such that a severe punishment, involving a long period of incarceration, was, one would have thought, inevitable. Had it not been imposed (as in fact it was) the public would have been entitled to a careful and thorough explanation from the judge of his reasons for deciding otherwise. The public could then - assuming that the sentencing remarks were reported carefully and in appropriate detail - make an informed decision about the merits of the sentence. A public expression of dissent that did not descend into a personal attack on the judge would in those circumstances have been entirely within the democratic right of those who disagreed with him.
It is not difficult to imagine a very different case: one in which the media incite extreme hostility against a member of an unpopular minority group who has been found guilty, but in mitigating circumstances, of a serious crime. An editorial published between conviction and sentence, in which the mitigating circumstances were ignored and the severest possible sentence stridently demanded, might well amount to a very serious contempt. But I speak by way of illustration only; in this, as in other areas of the law, it is wrong to be prescriptive, and I do not mean to be so. The particular circumstances of the particular case are all important.
This is not to excuse the respondents from inappropriately recommending that the prisoner be sentenced to life without parole. Not every wrongful act, however, is a crime. A sentencing judge reading the editorial would not, I think, be influenced in the slightest by it, while acknowledging with wry appreciation the respondents’ skill in testing the boundaries of the law of contempt. The Sunday Herald Sun’s reading public would, I also think: (a) accept that here was a sentence to watch; (b) be reinforced in its assumption that there was in the community a climate of concern over what are perceived to be soft penalties for serious crimes; (c) give not a second’s thought about whether that concern was warranted; (d) make a mental note to expect outrage were anything much less than life without parole to be imposed; but (e) not conclude that the judge had already been trapped, or even affected, by any extraneous influence.
The applicant relied heavily on the New Zealand case of Attorney-General (NZ) v Tonks.[7] A man named Towns had pleaded guilty to a charge of indecent assault. The maximum sentence was seven years imprisonment, with three floggings. The sentencing judge ordered only one flogging, but imposed the maximum term of incarceration. In the meantime, between plea and sentence, the New Zealand Truth, printed and published by Mr Tonks and with a wide circulation, had informed its readers that the revolting nature of the offence “should meet with the utmost rigour of the law”.
[7][1939] NZLR 533.
Two judges heard the application of the Attorney-General for an order that Mr Tonks be imprisoned for contempt. Myers CJ said[8]:
"The publication of the matter complained of is a contempt of court only if it was calculated to prejudice, obstruct or interfere with the due administration of justice. I can entertain no doubt that it was. The court must not only be free – but must also appear to be free – from any extraneous influence. The appearance of freedom from any such influence is just as important as the reality. Public confidence must necessarily be shaken if there is the least ground for any suspicion of outside interference in the administration of justice. Any publication therefore that states or implies that the sentences imposed by the court are, or may be, affected by popular clamour, newspaper suggestion, or any other outside influence is, in my opinion, calculated to prejudice the due administration of justice.
The newspaper circulates widely throughout New Zealand, and the proceedings … are reported with particularly striking captions and printed in such a way as particularly to attract the attention of the readers of the paper. The passage in question shows that in the opinion of those responsible for the publication Towns' offence demanded that he should meet with the utmost rigour of the law – meaning presumably that nothing less than a sentence of 7 years' imprisonment and a flogging or floggings would be adequate punishment. If the court imposed that sentence, it might well be assumed by the readers of the paper that the court had been influenced by the newspaper's demand. If, on the other hand, a lesser sentence were imposed, the article was calculated in anticipation to arouse resentment against the court – and this though it might well happen that material evidence as to the man's mental condition or other circumstances which were not before the committing magistrate might be brought before the Supreme Court, and result in the imposition of a sentence less severe than that which might appear to be required on the material placed before the committing magistrate."
[8]Ibid, at 537.
In a judgment in which he agreed with the Chief Justice, Reed J said[9]:
"But it is unnecessary to consider whether a judge would or would not be affected by the comment. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but as to whether it tends to interfere with the due course of justice … Even if it could be shown that in the particular circumstances of a case it would not interfere with the course of justice, it is immaterial if the tendency of the comment is to interfere."
[9]Ibid, at 541.
So Mr Tonks was convicted of contempt. But the Attorney’s application for a prison sentence was refused. Mr Tonks was merely fined £10. It may be that the climate of concern about the standards of the New Zealand media was in those times such that this lenient decision was received with outrage. Or such would perhaps have been the case were the sentence reported, as these things often are, without reference to all the material facts. But there was an explanation for the imposition of no more than a small fine; and on this occasion the New Zealand Truth – if it published the story at all – can be expected to have published it in full. It would certainly have informed its readers that the court felt constrained to be merciful, because it accepted “the explanation that the writer of the article and the editor of the paper had no intention of doing anything calculated to interfere with the due course of justice.”[10] It is to be hoped that all reports of sentences, and indeed of judicial decisions generally, enable the public to make an informed assessment of the reasons for what the courts have done.
[10][1939] NZLR 533 at 539.
In my opinion, Attorney-General v Tonks may be distinguished on its facts; and in any event I do not accept that public confidence must necessarily be shaken if there is the least ground for any suspicion that the media is making an indirect bid to influence a court. As I think the media and the public know, the courts are not,[11] and must not be, influenced - easily or at all - by extraneous matter.
[11]This comment is subject to the possibility, discussed briefly in para. 28 below, of subconscious influence.
My view has been influenced by the result of other litigation involving the first respondent (and others associated with it). In the Herald & Weekly Times Ltd and Ors v The Attorney-General for the State of Victoria,[12] the appellants had published articles about a person then being held under the Crimes (Mental Impairment and Unfitness to be Tried Act)1997. At the same time, a review of that person’s status under that Act was being conducted by Eames J. The headline of one of the articles was “Never let him out”; of the other, “Don’t let him out”. The appellant was charged with contempt of court on the basis that in each case the article had a tendency or was calculated to interfere with the due administration of justice. The appellant was convicted. On appeal, all three judges agreed that the appeal should be allowed. Callaway and Buchanan JJA accepted that the headlines did not represent, and were not put forward as representing, the views of the appellants. J D Phillips JA on the other hand, allowed the appeal on a different basis. Although his Honour held that, as read by most people, each headline would be seen as a recommendation or direction to the judge, it nevertheless did not follow, in his opinion, that there was a serious risk that the court would appear not to have been free from outside influence: a fortiori when that risk had to be established beyond reasonable doubt. [13]
[12]Unreported, [2001] VSCA 152.
[13]At [5].
The same reasoning can, I think, properly be adopted in this case. Substituting “editorial” for “headline”, the appropriate conclusion is that there was not a serious risk that the court would appear by reason of this editorial to be subject to outside influence.
There has been some debate in the authorities about whether such influences may, consciously or subconsciously, affect the decision-making processes of a judge. At the commencement of his consideration of this issue in the BLF case, Mason J asked[14]:
"Are judges resistant to extraneous influence and prejudice? It seems that judges are as divided in opinion about themselves as they sometimes are about the answer to a question of law."
[14](1982) 152 CLR 25 at 100-101
It is unnecessary for me to add to this debate. I am satisfied that no judge faithful to his or her oath would have been swayed consciously or unconsciously by the editorial in question into doing other than that which his or her conscience dictated.
For these reasons, the application must be dismissed.
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